[1] Andrew Fowler was sentenced to 12 months’ intensive supervision and four months’ community detention on three charges of sexual conduct with a young person1 at the New Plymouth District Court on 3 May 2017.2 The sentencing Judge exercised his discretion to place Mr Fowler on the Child Sex Offender Register (the Register) established under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (the Act). Mr Fowler now appeals against the
registration aspect of his sentence.

Facts

[2] Mr Fowler was 23 years old at the time of the offending and has mental health difficulties.

1 Crimes Act 1961, s 134(1); maximum penalty 10 years’ imprisonment.
2 R v Fowler [2017] NZDC 11180.

FOWLER v THE QUEEN [2017] NZHC 1892 [10 August 2017]

[3] On 28 July 2016, Mr Fowler and his friend were in the Bell Block public library. There they met a 15 year old girl and her friend. Mr Fowler asked the girl and her friend to come back to his house. The girl told him she was 15 years old. At his house, she performed oral sex on him, and they had sexual intercourse. The police arrived to pick up the girl’s friend, who had absconded from CYF care. A police officer discovered the victim in Mr Fowler’s bedroom, wearing only a blanket. The officer and the victim made it clear to Mr Fowler she was 15 years old.

[4] The following day, both Mr Fowler and the victim were again at the library, and again returned to Mr Fowler’s house where they had sex. The police arrived and discovered her in his bedroom.

[5] In his initial interview, Mr Fowler denied having sexual intercourse with the victim. He claimed he had intended to do so, but was interrupted by the police on the first occasion. He stated on the second occasion he had some sexual contact with her, but that did not extend to sexual intercourse.

[6] The victim was one month past her 15th birthday at the time of the offending. She has learning and behavioural difficulties which means she only attends school two hours a day. She states she is easily influenced and “went with it” when Mr Fowler showed her attention. She said she consented to the sexual conduct, but knew it was wrong due to her age. Afterwards she felt “gross” and overdosed on pills.

[7] Mr Fowler’s criminal history contains three convictions only, all for breach of a liquor ban.

The District Court decision

[8] The sentencing Judge had given a sentencing indication of 10 and a half months’ home detention, but noted that depended upon the outcomes of any pre-sentence report and an assessment of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fowler v R

Details

AGLC: Fowler v R [2017] NZHC 1892
Case: [2017] NZHC 1892
Decision Date: 10 August 2017

CaseChat Overview and Summary

Andrew Fowler appeals against the decision of the New Plymouth District Court to place him on the Child Sex Offender Register under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016. Fowler was sentenced to 12 months’ intensive supervision and four months’ community detention for three charges of sexual conduct with a young person. The District Court Judge ordered that Fowler be placed on the Child Sex Offender Register for a period of eight years. Fowler submits that the District Court Judge did not adequately consider the relevant factors when deciding to place him on the Register. The High Court must first determine if there is an intrinsic error or one resulting from additional information that requires a different sentence to be imposed. The High Court must then assess whether the District Court Judge was satisfied that Fowler poses a risk to the sexual safety of children, and if so, whether the order was appropriate. The High Court found that the District Court Judge did not adequately consider the relevant factors when deciding to place Fowler on the Register. The High Court found that the risk posed by Fowler was relatively low and that the balance of the consequences of registration to ameliorate the risk against the considerable impact on Fowler and his rights weighed against such an order. The appeal is allowed and the order that Fowler be registered under s 9 of the Act is quashed. The other elements of the sentence are undisturbed.

Orders